When Religious Expression and Zoning Ordinances Collide

Which wins out when religious expression and land-use regulations smack into each other? There’s actually a law for that. It’s called the Religious Land Use and Institutionalized Persons Act.

The law, signed by President Bill Clinton in 2000, bars any land-use regulation that “imposes a substantial burden” on religious exercise unless that regulation uses the “least restrictive means” to further a “compelling governmental interest.”

The WSJ’s Jess Bravin reports that the law is getting a workout in San Leandro, Calif., where a pastor is fighting the city after it rejected his plans to move his growing congregation to a bigger building. The property in questions lies within San Leandro’s so-called Industrial Sanctuary, where city leaders hope to lure employers attracted by the nearby port of Oakland and other transport hubs.

Under municipal law, the zone’s permitted uses range from “adult-oriented business” to “warehouse” — but not “religious assembly.”

In April, however, the Ninth Circuit ruled that San Leandro may have violated the 2000 law by refusing to amend its zoning code to accommodate the Pentecostal congregation. The city appealed to the Supreme Court, which declined to hear the case, meaning that a federal court will now decide whether San Leandro broke the religious land-use law.

The pastor, Gary Mortara of Faith Fellowship Church, sold the property at a loss in 2010, meaning that if the church prevails, the city could owe Faith Fellowship $4 million or more in damages and attorneys’ fees.

So what’s the legal argument here?

John Faria, a former mayor and Chamber of Commerce president who opposed Mortara’s project, said promoting jobs is the kind of “compelling governmental interest” required under the 2000 law.

Job creation may be a compelling interest “in political rhetoric or lay terms, but ‘compelling’ is a legal term” that usually means something related to “health or safety,” attorney Kevin Snider of the Pacific Justice Institute, an advocacy group representing the church.

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The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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